Death and Discourse: The History of Arguing Against the Homosexual Panic Defense

Matthew T Helmers. Law, Culture, the Humanities. Volume 13, Issue 2. June 2017.

Beginning in the 1960s, American males began to plead the “Homosexual Panic Defense” (HPD) when charged with the murder of a homosexual male. Over the next 50 years, legal and literary academics decried the use of the HPD affirming that it relied on prejudicial stereotypes of “bad” homosexuals as sexual predators. This article revisits these critical debates and shows how these legal critics attempt to gentrify the “homosexual” into a good subject in order to justify his right-to-life. I argue that sexuality should never be considered a justification for murder, regardless of the particular homosexual’s status as good or bad.

On April 25, 1965, Joseph Rodriguez picked up a tree branch and beat his elderly victim to death in a California alleyway. In the trial a year later the defense would argue, for the first time in U.S. law, that the defendant had undergone “an acute homosexual panic brought on him by the fear that the victim was molesting him sexually” (People v. Rodriguez. 256 Cal.App.2d 663 (Cal.App. 1967)). In a similar case two years later, this time in Illinois, John Parisie was found asleep in his victim’s blood-splattered car; Parisie allegedly accepted a ride home from the victim who instead drove out to a nearby lake and made a homosexual advance. In the trial “Parisie testified that he just ‘blew up, went crazy,’ vaguely remembered struggling with the decedent and hearing a noise that he assumed to be gunshots” (People v. Parisie. 5 Ill.App.3d 1009 (Ill.App. 1972)). Parisie’s defense would argue “insanity based upon ‘homosexual panic’,” in an attempt to dismiss the murder charges due to Parisie’s inability “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” (People v. Parisie). In 1972, John Nolan brutalized his victim with a large metal bolt, strangled him with an appliance cord and then suffocated him with a pillow after the decedent allegedly placed his hand on Nolan’s leg and grabbed his groin; as the appellate court would summarize “in substance, the defendant’s version was that, enraged by the homosexual approach of the decedent, he beat, kicked and choked him, then, as an afterthought, took his money and left” (People v. Long. 38 Cal.App.3d 684 (Cal.App 1974)). From these beginnings, the homosexual panic defense (HPD) became a prevalent defense strategy in cases involving violence against purportedly homosexual males. Time and again, the defense argued that the defendant’s homophobia resulted in the excusable or justifiable murder of a homosexual who made unwanted homosexual advances. For many commentators, the message was clear: “physical attacks motivated by the animus towards gay men and lesbians communicate the false message that homosexuals do not deserve to be treated with dignity and respect.” In the face of these brutal slayings of homosexuals that rob them of their rights to dignity, respect and even life, later legal critics deployed a seemingly simple affirmation: homophobia is wrong.

Homophobia is wrong. This statement, wielded axiomatically, has become perhaps one of the strongest platforms on which to argue for homosexual rights. It is an axiom that, in its simplicity, denounces homophobia for its misunderstanding of homosexuals as bad subjects who invite ridicule, punishment and death. It is perhaps no surprise then that the intellectual trajectory of articles arguing against the HPD have at their heart a desire to stop homophobic violence through demonstrating that “true” homosexuals are good subjects worthy of both dignity and respect. The strategic utility of affirming the goodness of homosexuality notwithstanding, I contend that the proliferation of antihomophobic positive images of “good” gay men in these articles conversely continues to legitimate a systemic hatred of “bad” gays. While these articles affirm the axiomatic wrongness of homophobia and espouse the idea that gays do not deserve to be murdered because they are dignified and respectable, I suggest to the contrary that gays do not deserve to be murdered even when they are undignified and disreputable.

To this end, this article takes as its object of study not the cases of homosexual panic themselves, but rather the critical trajectory of legal articles that interpret, challenge, interrogate and denounce those cases. Beginning by reconstructing the genealogy of criticism begun in the early 1990s and continuing to the present day, I look at the common anti-homophobia threads that motivate the arguments. Moving sideways from this trajectory, I explore parallel regimes of knowledge that attempt to make sense of these cases, and how they can potentially challenge and reinscribe the understandings of the good homosexual central to the HPD debate. Throughout this article, I argue that the continual attempts to reject negativity and stereotype, while in some cases effective in delegitimating the HPD, establish a utopic version of homosexuality that violently negates the existence of those homosexuals that fall outside the narrow category of “real” and “good” homosexuality.

Legal Panic: Defining and Dismissing the HPD

The first legal examination devoted exclusively to the HPD occurs in Robert Mison’s 1992 article “Homophobia in Manslaughter.” In this work, Mison attempts to dismiss the nonviolent homosexual advance defense through denouncing it as “a misguided application of provocation theory and a judicial institutionalization of homophobia.” Referencing numerous cases from the 1980s, Mison defines the HPD:

The homosexual-advance defense capitalizes on the social and individual responses of fear, disgust, and hatred with regard to homosexuals. The accused asserts that the victim made a homosexual advance, which is presumably a terrifying and disgusting event. A variety of responses – including fear, anxiety, anger, and hatred – then consumed the accused. These responses displaced all other possible reactions, including self-control, tolerance, and compassion. Thus goaded into a heat of passion, the accused killed the homosexual victim.

In seeking to avail himself of the provocation defense the defendant hopes that the typical American juror – a product of homophobic and heterocentric American society – will evaluate the homosexual victim and homosexual overture with feelings of fear, revulsion, and hatred. The defendant’s goal is to convince the jury that his reaction was only a reflection of this visceral societal reaction: the reaction of a “reasonable man.”

While individual portions of this definition are critiqued in later articles, the trajectory of homosexual panic within legal scholarship maintains the same basic factors: a man advanced upon by an apparent homosexual went into a state of panic and killed or attempted to kill his perceived aggressor. This panic was based upon the man’s internalized homophobia; the man thereby attempted to gain leniency from a possibly homophobic jury through appealing to an assumed universalized fear/hatred of homosexuals in the form of a homophobic reasonable man standard.

In 1995, Joshua Dressler critiqued Mison’s article. Maintaining the goal of addressing the “serious legal problem” of “discrimination against gay men and lesbians,” Dressler challenges Mison’s “blanket rejection of the provocation defense in NHA [Non-Violent Homosexual Advance Defense] prosecutions.” Together, the Dressler and Mison articles form the two canonical sides of the debate around the HPD, cited and expanded upon in the works of Chen (2000), Suffredini (2001), McCoy (2001), Lee (2008) and Kent (2010). This debate focuses on two points of the HPD’s inclusion under the provocation doctrine: the justification/excuse status of the HPD and the interpretation of the reasonable man standard. Mison argues that the HPD is a justification, meaning that any reasonable man when approached by a homosexual will enter into a state of homosexual panic and kill that man. The actor therefore cannot be blamed for his actions because he acted in a predictable and normal fashion, ergo his actions are justified. Because, Mison argues, this defense essentially justifies homophobic murder, it needs to be eliminated from U.S. law.

Conversely, Dressler argues that HPD is an excuse, meaning that while not every male approached by a homosexual would enter into a state of panic, this male did enter into a state of panic that qualifies as the heat-of-passion. In this state of panic, the actor lacked the malice aforethought (mens rea) requisite for a murder charge and as such, can only be evaluated on the basis of voluntary-manslaughter. The actor is excused from the tougher conviction. Dressler concludes that the violent response is disproportionate to the non-violent advance and thereby dismisses the homosexual advance as insufficient provocation, maintaining the provocation doctrine while eliminating the HPD’s inclusion therein.

At the heart of both Mison and Dressler’s positions is a differential understanding of the reasonable/ordinary man standard. Mison argues that the reasonable man is without passion and thus “the argument is not that the ordinary person would not be provoked by a homosexual advance, but rather that a reasonable person should not be provoked to kill by such an advance.” The reasonable man for Mison is the person whom the law encourages us to be. Dressler argues the opposite, affirming that the reasonable man standard must be a reflection of the human actually extant, and as such:

The reason the killing can be mitigated to manslaughter is that the law partially excuses an emotional killer for the actions he has taken as the result of provocation sufficiently egregious to stir emotions that might cause an ordinary person to act rashly. In such a circumstance, it is assumed that the actor’s capacity for self-control has been reduced to a degree such that it is morally unjust to treat him as a murderer.

For Dressler, the ordinary man has passions, emotions and failings that lead him to commit certain acts, and while these do not justify his/her actions, they do excuse them. Mison dismisses the HPD by critiquing the way it establishes homophobia as a “reasonable” human characteristic; Dressler dismisses the HPD by critiquing the way it improperly affirms that the response of an ordinary homophobic person to homosexual advance will be necessarily violent.

This debate over the homophobia of the reasonable man and the justification or excuse status of the HPD recurs throughout the limited archive of subsequent legal articles. Chen (2000) challenges Dressler’s dismissal of the links between heterocentrism and homophobia; Suffredini (2001) endorses and cites Mison in her conclusion that “American society may be primed to scrutinize, limit, and better yet eliminate the use of the HPD;” Lee (2008) builds upon Mison’s affirmations about America’s heterocentrism, but “strike[s] a different path from that of other critics of the gay panic defense” by arguing for the open inclusion of the HPD in court in order to encourage jurors to think critically about their own homophobic bias; McCoy (2001) incorporates both Dressler and Mison in order to dismiss the HPD by demonstrating its incongruity with contemporary hate-crime legislation; and Kent (2010) uses a citation from Mison as her epigraph and sides with him over Dressler concluding “judges should never, as a matter of law, send the manslaughter instruction to the jury on evidence of a non-violent homosexual advance.” These articles stand on the ground of the Mison/Dressler debate and flesh out the implications of accepting either thinker’s central axioms through exploring the resonance of embracing one model over the other in contemporary legal cases.

Some of these later articles also secondarily draw upon a slightly less prominent strain of argumentation introduced in Gary Comstock’s 1992 “Dismantling the Homosexual Panic Defense” in which he attempts to dismiss the HPD based upon the spurious psychiatry grounding the acute homosexual panic. Chen (2000) and Suffredini (2001) both employ the disjunction between psychiatric and judicial uses of homosexual panic to demonstrate the homophobic efforts of some attorneys in transforming a seemingly unrelated psychiatric diagnosis into a similarly named legal defense. According to Chen, Suffredini and Comstock, the HPD has little to do with its psychiatric origins. As Comstock concludes:

As a psychological disorder in which neither sexual advance to the patient by another person nor violent attack by the patient of another person are causal or symptomatic, acute homosexual panic would seem to be inappropriate as the basis of a legal defense for men who claim to have killed another man to ward off his sexual advance.

Because of the lack of congruence between the psychiatric diagnosis and the legal defense, Comstock affirms “attorneys have chosen, therefore, to lend their own interpretations to and shape homosexual panic to the needs of their clients.” Chen reiterates this conclusion stating that due to the American Psychiatric Association’s movement away from defining homosexuality as a form of insanity “the homosexual panic defense no longer rationally functioned within the criminal defense frameworks of insanity or diminished capacity because no defined mental defect existed. Remarkably or understandably, depending on one’s point of view, instead of losing currency as a viable criminal defense, the homosexual panic defense is still used today.” Similarly, Suffredini avers, “this evolution demonstrates that the defense as asserted and applied is not based on the psychiatric literature, but on anti-gay stereotypes and prejudices.” Because the defense no longer finds support in psychiatric principles, the attorneys in these cases, according to these theorists, must return to the general heterocentrism and homophobia of American culture in order to draw upon homophobic stereotypes and prejudices that will work to legitimate the defense’s repressive principles.

The congruence between the Comstock, Dressler and Mison articles and their contemporary explorations lies in this emphasis on the homophobia codified in the HPD. While legal principles and psychiatric histories are employed to dismiss the HPD on critical grounds, the articles universally include a secondary condemnation of homophobia. More specifically, the articles typically punctuate their academic conclusions with a common-sense rejection of the homophobic stereotypes that the HPD generates about homosexuals. For example, Mison lists the “common negative stereotypes” that the HPD reinforces, which “include: homosexuals are loathsome sex addicts who spread AIDS and other venereal diseases; homosexuals are unable to reproduce, and therefore must recruit straight males to perpetuate their ranks; homosexuals are unproductive and untrustworthy members of society; homosexuals are insane and dangerous because homosexuality is a mental illness,” in order to dismiss the HPD because of its perpetuation of these fictions. Dressler similarly concludes:

I may be a heterosexist. I may value my heterosexuality to an extreme. I may want to be around only macho men like me. But it is possible for a chauvinist to take a live-and-let-live attitude. Such a chauvinist might not hate homosexuals, but rather might feel some other emotion, perhaps pity or condescension, toward this “less-advantaged” group. These feelings are founded on myths and false-hoods about gay people.

Contemporarily, Suffredini affirms “one anti-gay stereotype that the HPD reinforces for jurors is the notion that gay men are sexual predators … another anti-gay perception that the HPD triggers in jurors is that a homosexual advance, even if merely verbal, is equivalent to a sexual attack.” Even the earlier Bagnall, Gallagher and Goldstein article argues “the defense reinforces stereotypes about gays. Ironically, it is these very stereotypes that cause the irrational reaction of some defendants and results in murder and serious assault.” This language around the stereotypes of gay men which are prima facie bad or wrong stereotypes provides a force to these arguments, translating the academic debate on the provocation doctrine to a crusade against the “homophobia [that] is the motivating force at the core of the homosexual-advance defense” and against the more nefarious idea “that perhaps the legal system is not concerned about detecting bona fide instances of homosexual panic disorder, nor about demanding full accountability for unmitigated anti-gay violence” and is instead invested in the sub rosa endorsement of these homophobic forces. Again, while these articles differ on the legal arguments for and against the inclusion of homosexual panic as a provocation defense, none of them deny the need to eliminate homophobia as the evil at the “core” of the HPD.

While Mison goes to lengths to explain what he regards as America’s heterocentrism and homophobia and Dressler attempts to separate heterocentrism from homophobia, none of the articles in this trajectory explore a nuanced understanding of homophobia as anything other than uncritical and wrongheaded. According to this genealogy, the HPD is endemic and generative of a set of violent homophobic fictions which must be dispelled by the astute legal critic, as Lee concludes “the only way claims of gay panic will lose their appeal in the long run is if the assumptions underlying these claims are exposed for what they are: false negative stereotypes about gay males as deviant sexual predators with little basis in reality.” Similarly, Kent places the onus on the judges, stating “the legally sophisticated trial judge must act as a screen and prevent the manslaughter instruction [of the HPD] from being heard by the jury when there is not sufficient evidence. When the jury is given the manslaughter instruction, the individual biases and prejudices of the jurors may cause them to misapply the ‘reasonable man’ standard.” Falsity, stereotype, fiction and ignorance are clustered together around homophobia in the negative aspect of the binary, while truth, sophistication, reality and “bona fide instances of homosexual panic” occupy the privileged aspect. For these articles, the duty of the judge and the legal critic is to fight against the homophobic fictions of the HPD through preventing the dissemination of these myths in legal discourse.

This orientation towards homophobia and truth enables these critics to argue strongly against the continued inclusion of the HPD, robbing both the defense and the moment of panic of their legitimacy through denying the existence of the bad homosexuals that prey upon innocent heterosexuals. The counter-discourse proposed by these critics presents instead the bad homophobe assaulting the good homosexual, conversely locating the sight of badness and perversion in the now violent homophobe rather than the nonexistent predatory homosexual. What this oscillation between good homosexual/bad homosexual obfuscates is the continued presence of homophobia in both scenarios as a discursive regime for ordering truth and falsity. In moving from a homophobic to an anti-homophobic emphasis by shifting the good/bad labels within the regime of knowledge without challenging the framework, the Mison/Dressler debates perpetuate the exclusion of those identity positions that fall outside the cherished limits of “good” homosexuality. Essentially, the Mison/Dressler debates reverse the valuation of the binary homophobe/homosexual without considering how that structure of valuation might problematically reject some people’s existence as mere myth. By further exploring homophobia as a regime of knowledge rather than critiquing the good/bad status of identities within that regime, I want to suggest contrary to the Mison/Dressler debates, that predatory, AIDS-carrying, untrustworthy homosexuals exist, and in their non-mythic status destabilize the easy binary between good/bad homosexuality.

Myths and Discourses: Rescuing Homosexuals from Stereotypes

Nowhere are these concerns over the discourse governing the Mison/Dressler debate better exemplified than in Casey Charles’ 2006 article on the HPD “Panic in The Project.” Charles draws upon the ideas of Mison and Dressler and then develops his argument on the HPD from a Law and Literature perspective by combining a detailed reading of Aristotelian tragedy and catharsis in the stage-play The Laramie Project with a legal critique of the homosexual panic defense as “a historical legal doctrine fraught with assumed fictions about gay and straight men.” Charles orients his article around the murder of Matthew Shepard, a homosexual youth from Laramie, Wyoming who in 1998 was beaten and left for dead by Russell Henderson and Scott McKinney. In the trial a year later, McKinney and Henderson would both raise the HPD in an attempt to excuse their actions. While ultimately unsuccessful, the use of the HPD in this case garnered national media attention and the murder became the catalyst for many gay rights initiatives and the basis of songs, stage-plays and special news reports including the aforementioned The Laramie Project and Elizabeth Vargas’ revisionary 20/20 report that Charles also examines in his article. In introducing a critique of these fictional reproductions of the murder, Charles foregrounds the binary argumentation on the good/bad homosexual from the Mison/Dressler debates, routing his critique through the mythic status of the bad homosexual.

Charles affirms that the 20/20 news report and other discourses proliferate untrue myths about gay men. He does this by drawing upon Michel Foucault’s work on “discourse theory” which for Charles “play[s] a key role in my understanding of the history of the homosexual panic defense.” While also incorporating Stuart Hall’s concept of articulation, Charles develops his use of the term discourse by paraphrasing Foucault’s Archeology of Knowledge. Charles summarizes:

Michel Foucault designates discourse as a broad signifier that represents connections between bodies of knowledge and social control, between discrete institutions that produce regimes of truth within the boundaries of their field – whether medicine, law, journalism, or literature, to name a few – and the effects those regimes have on assumed narratives of identity. Although not equivalent to the concept of dominant ideology nor wholly hegemonic in its operation, discourse nonetheless “transmits and produces power” through claims to expertise that enable and constrain the social imagination, even establishing notions of the subject.

In attempting to condense one of Foucault’s central concepts into a critical tool for analyzing the interaction between fictional reproduction and primary event, Charles potentially avoids the specificity of the term discourse which sets it apart from the terms ideology and hegemony that he cites. Discourse, in Charles’ arguments, is added to, or informative of, a truthful occurrence, as if the truth (the identity, the subject, the social imagination) existed before and apart from discourse, and was then changed, manipulated or recreated through the introduction of a discourse (of medicine, law, journalism or literature). We see this understanding of discourse earlier in Charles’ paralleling of various discourses with myths and fictions, as Charles asks:

How does the legitimization of such panic complement a religious discourse that understands homosexuality as the potential downfall of civilization, a political discourse that outlaws samesex marriage because it threatens the American way of life, a cultural discourse that continues to capitalize upon the clash of straight and gay cultures in mythical venues like the American West of Wyoming? If panic finds its motivation in groundless “fictions” about the aggressive, recruiting gay male, then the law’s legitimization of that fiction reveals the serious dangers behind these narratives of prejudice.

Here discourse, narrative, myth and fiction come together, equally espousing untrue homophobic ideas about true gay subjects. Discourse becomes the term to label the effects of certain cultural apparatuses (law, medicine, journalism, literature) in their attempts to curtail or control understandings of identities in our world. For example, religious discourse understands the homosexual as the potential downfall of civilization. This is not the truth about homosexuals for Charles, but a discursively created stereotype perpetuated by the HPD and mistakenly embraced as a truth.

In this section on myths, fictions and discourses Charles rehearses a longer line of argumentation from the Mison/Dressler debates in which the critics condemn the homophobic proliferation of speech in American culture as endemic, and potentially generative of, the homophobic forces that result in some men killing homosexuals and arguing that their actions are justifiable or excusable. We see this most clearly in Charles’ caveat about the “serious dangers” that occur when the law in the form of the HPD legitimates these narratives endorsing the murder of homosexuals. My issue here is not that Charles somehow mislabels these discursive moments, indeed examples of all three are readily available; instead, I ask what the “homosexual” looks like apart from these discourses?

Perhaps most telling, Charles uses discourse in an overwhelmingly negative fashion, restating the binary from the Mison/Dressler debates in which myths, fictions and stereotypes are the falsities that need to be gotten through in order to arrive at a privileged true understanding of the homosexual. In order to dispel the discursive fictions, Charles calls upon critics stating “as legal critics, we must unmask fictional and ungrounded narratives that sometimes govern convictions by juries and jurists. HPD is one of those doctrines. As literary critics, we must discover narratives that inspire and facilitate change, rather than produce a contained form of sympathetic catharsis.” For Charles, legal critics must strip away the additives of discourse in order to arrive at the truth, removing the fictions of the HPD and revealing the true characters of gay men. Relatedly, literary critics must endorse those forms of representation which accord with the desired social change: avoiding The Laramie Project that dilutes activist energies through catharsis, and embracing those representational forms that enhance and channel the audience’s desire to bring about a reality that accords with the “truth” of homosexuals. In Charles’ conclusion we see a return to the Mison/Dressler debates in which lawyers, judges and readers are invited to reject the stereotypes, falsehoods and myths about gay people perpetuated by a wrongheaded homophobic discourse.

What is missing in Charles’ work is a positive definition for this elusive “true” homosexual. Instead, we are given the truth in negative space, carved out from the places in which the “true” homosexual can be distinguished from the discursive (and wrongheaded) appropriations/reinscriptions of homosexuality. In contrast, Mison and Dressler appear to address the issue of true homosexuality more tentatively, with Dressler initially placing homosexuality in quotation marks stating:

The words “heterosexual” and “homosexual” in the title are in quotation marks because it is likely that most persons are neither exclusively heterosexual nor homosexual. [Alfred C. Kinsey et al., Sexual Behavior in the Human Male, (639, 1948]. Therefore, the description of a person, as distinguished from an act, as “homosexual” or “heterosexual” is arbitrary.

Mison similarly hedges his use of homosexual in a footnote affirming that he deploys the term akin to Douglas Warner “‘chiefly where quoted sources use it, and in discussion of the historical and more abstract legal, moral, and social issues raised by homosexuality.’” Both of these moments seem to describe variegated understandings of homosexuality as a sign that generates historical, legal, moral and social issues, and as an arbitrary demarcation that sets up a myopic binary of hetero-/homosexuality in ignorance of a general spectrum of possible desire. Yet Mison, as previously cited, goes on to list in detail the “stereotypes” that (mis)characterize homosexuality. Similarly, Dressler denounces the “myths and falsehoods about gay people.” In this condemnation of the falsehoods, myths and stereotypes that mislabel or misrepresent homosexuality, both thinkers perform a more cogent category of sexuality than their nuanced definitions at first suggest. In effect, Mison and Dressler affirm that while homosexuality may be a vague category that raises abstract issues, they can at least demarcate this category of people from what they are not: the false stereotypes. In Charles, Mison and Dressler, the category of true homosexuality may at times be nebulous, discursive and inaccurate in its positive definition, but all three articles sharply guard this vague category against the homophobic stereotype and in doing so afford homosexuality a negative definition as “non-stereotypical.”

The problem with this “true” homosexual is that he is the most culturally acceptable version of the homosexual. In effect, the homosexual of this trajectory takes on a subject position within the law that is without fault or flaw. While the articles in the Mison/Dressler debate routinely are willing to admit that homophobic fictions govern the decisions of juries in these cases and enact effects in the real world, they are unwilling to address the possibility that a “true” homosexual might fit into one of the feared fictional categories the articles repudiate. For these articles, the potential real-world identification of a homosexual with one of the discursive myths is always a misidentification.

Yet, in rejecting these stereotypes perpetuated by homophobic discourses, the articles similarly deny a consideration and defense for those who might identify with these rejected categories. Does the homosexual who makes a homosexual advance, or the homosexual who is a “loathsome sex addict” or who “recruit[s] straight males” deserve less rights or less recognition under the law? By rejecting the possibility that these identity positions may be “true” for particular homosexuals, the articles of the Mison/Dressler debate allow and potentially authorize the continuance of violence and discrimination against “stereotypical” gays because these articles fail to account for the possibility that “true” homosexuals may identify accordingly.

We might, to the contrary, find more power in arguing that some homosexuals spread AIDS and do not deserve to be killed. In this movement, we would guarantee an unprivileged place for those who identify as homosexual within the law, so that their right to life is not contingent upon their ability to conform to an abstracted true definition of the gentrified homosexual. This would allow space in the law for aggressive homosexuals, AIDS-spreading homosexuals, straight-recruiting homosexuals as well as those homosexuals who do not engage in these activities, widening the spectrum of discursive possibilities for these people.

Furthermore, if we are to take Foucault’s assertions about discourse and truth seriously, as Charles invites us to do, then we cannot choose which discourses ring true and which produce negative fictions and stereotypes about homosexuals. To do so sets up a false binary in which statements are judged against the reality we wish to foster and subsequently dismissed as true or false based on their congruence with that reality. This is contrary to Foucault’s characterization of discourse in The History of Sexuality where he affirms “we must not imagine a world of discourse divided between accepted discourse and excluded discourse, or between dominant discourse and the dominated one; but as a multiplicity of discursive elements that can come into play in various strategies.” Following Foucault, it is not that there is a maligned true homosexual and a dominant false homosexual, but rather that both discourses on homosexuality (the fictive and the true) exist mutually in a multiplicity of discourses that construct homosexuality within different strategies to different ends. This acknowledgement pulls the “true” homosexual back into the realm of discourse, reinstating an equivalency between those “myths” that the Mison/Dressler debate condemn and the true homosexual they hope to rescue.

Rescuing the Good Homosexual: Arguing against Silence

In the final part of this article, I want to turn to this process of rescuing the good homosexual from the bad stereotypes in order to show how these dichotomies between good/ bad are established in the very form of the argument that Charles and the Mison/Dressler debate employ in hopes of eliminating the HPD. For Charles, the fictive reproductions of the events of the Matthew Shepard murder in the form of The Laramie Project and 20/20 silence and erase the liberatory power of the anti-homophobic emphasis running through the Mison/Dressler debate. Charles is particularly critical of Vargas’s 20/20 special news report. He affirms that this report attempts to reattribute the murder of Matthew Shepard to “methamphetamine abuse and robbery” rather than hatred/fear of Shepard’s homosexuality. For Charles, this effort of 20/20 to rewrite the “true motivation” of the Shepard case appropriates the murder in service of a different end as “20/20’s revision of the story recasts Laramie as a town with a drug, not a hate problem.” Haunting these statements is the power of the Shepard case to enact cultural change, a power seemingly generated in the moment of Shepard’s murder that can be deployed through various discourses to different ends. In the original and according to Charles “true” understanding of the murder as motivated by anti-gay hatred, the power is used appropriately to enact change against cultural homophobia, while in the 20/20 report the power is improperly redirected to address drug use.

Charles further alludes to this power when he concludes “what strikes me as one of the dangers of airing differences and discussing tragic events is the capacity of discourse not to inspire but to defuse, to prevent change rather than foment it.” In this claim, Charles suggests that the discourse arising in response to the event can channel the power of that event in one of two ways: fomenting change or preventing change. Yet, while using the same term “discourse” in his reference to these forces, Charles seems to be presenting a different understanding to the mythic one he used previously. This alternate affirmation on discourse comes in the epilogue-like conclusion to Charles’ essay where he provides a supplementary anecdote about a performance and discussion of The Laramie Project that he attended in Missoula. In this passage, he again references Foucault after describing how “the discussion was moving, but the participants were also often quick – almost in a panic – to distinguish Missoula from Laramie.” In response, Charles “was struck by the way in which Foucault’s critique of the repressive hypothesis seemed to govern the production of talk in relation to the Shepard murder – talk that has taken the form of film, drama, essay, and media production and now perhaps this article.” While Charles does not elaborate his view of the repressive hypothesis, he seems to be suggesting a general circling of the issue of sex that proliferates talk while nonetheless interrupting or repressing that talk. The participants in the Missoula discussion and the related “talk” discuss the aspects of the Shepard murder while failing to address the issues of sexuality and sex more specifically. Similarly, Charles seems to be critical of the way his own article engenders a discussion of the discourses surrounding the Shepard murder without addressing directly the sex/sexuality at the heart of the event. Here, Charles gestures to a moment in Foucault’s The History of Sexuality, in the chapter on the repressive hypothesis, which contains a statement very close to Charles’ affirmations about the Missoula meeting:

We must not be surprised, then, if the effects of liberation vis-à-vis this repressive power are so slow to manifest themselves; the effort to speak freely about sex and accept it in its reality is so alien to a historical sequence that has gone unbroken for a thousand years now, and so inimical to the intrinsic mechanisms of power, that it is bound to make little headway for a long time before succeeding in its mission.

This passage presents Foucault’s characterization of the “repressive hypothesis” as a general (and according to Foucault incorrect) view of the ability to speak and know sex within the past one thousand years. The repressive hypothesis denotes a slow cultural awakening of speaking about sex, a speaking that is inimical to the “intrinsic mechanisms of power.” In the repressive hypothesis, speech about sexuality must revolve around the topic without directly addressing it. Repression, historical sequence and the intrinsic mechanisms of power prevent the proximate liberation of the concept of sex from those selfsame repressive forces.

In labeling the deployment of the repressive hypothesis in the post-play discussion, Charles returns to his initial conjectures on the ability of discourse to interrupt or prevent change through showing how in this case the discourse of the repressive hypothesis silences the ability to openly talk about sex(uality). In this silencing, the potentially disruptive power of speaking about sex, the one motioned to in both Charles’ earlier statements and in Foucault’s characterization of the repressive hypothesis, is defused and prevented. Following almost point-for-point in Foucault’s footsteps, Charles concludes:

Not surprisingly, the tragedy of the Shepard murder, and the incredible success of Kaufman’s play across the country, has not directly led to any legislation beyond a sexual orientation discrimination policy at the University of Wyoming and as Loffreda narrates, a hard fought city ordinance mandating statistic gathering and police training more than a year after the trials.

Through reading Charles’ paralleling of Foucault’s repressive hypothesis, we could assume that for Charles the power generated in the moment of Shepard’s murder is the power of speaking of sex: an open discourse that refutes the repressive force of silence. By acknowledging that Shepard was killed because of his sexuality, we are forced to confront and understand sexuality, and to proliferate discussions about how that sexuality is protected, or fails to be protected, under the law. In this discussion that foments change, we recognize the current inability for law to guarantee the right to life for homosexuals. We therefore deploy the power of this recognition to enact larger “legislation” protecting future homosexuals from homophobic attacks with interventions into governmental and legal discourses.

While these affirmations on change, power and discourse anchor Charles’ strong readings of both his primary texts and their discursive prevention of change, these readings ignore the specificity of the passage from Foucault. The “it will be said” that introduces Foucault’s characterization of the repressive hypothesis is Foucault’s attempt to distance himself from the general beliefs espoused therein (those beliefs rehearsed in Charles’ argument). In fact, the thesis of Foucault’s chapter is that the “repressive hypothesis” is wrong. Foucault signals this emphasis in the paragraph following his introduction of the aspects of the repressive hypothesis where he suggests “one can raise three serious doubts concerning what I shall term the ‘repressive hypothesis’:” the first, “is sexual repression truly an established historical fact?”; the second: “do the workings of power … really belong primarily to the category of repression?”; and the third: “did the critical discourse that addresses itself to repression come to act as a roadblock to a power mechanism that had operated unchallenged up to that point, or is it not in fact part of the same historical network as the thing it denounces (and doubtless misrepresents) by calling it ‘repression’?” Through the argument of his text, Foucault will come to answer “no” to the first two questions and to demonstrate that the latter of the two propositions in the third question is the more accurate one. It is this third question that most directly corresponds to Charles’ assertions about the power of Shepard’s murder and the discursive attempts to defuse that potential.

According to Foucault, the repressive hypothesis supposes that there exists a discourse of repression set against the open speaking about sexuality. Because we suppose that the repressive mechanisms repress open sexuality, we conversely assume that open speaking somehow has the power to undo or challenge the repressive culture. As we have seen, this parallels Charles’ condemnations of the 20/20 report that “attempts to put the Shepard case back in the closet.” For Charles, 20/20 erases the ability for the case to foment change in a repressive culture by rewriting the case’s ability to openly signal Shepard’s out of the closet sexuality. However, Foucault suggests that this binary of repression/openness is false, in that it fails to account for the ways in which the power of discussing sex is contained already within, and constitutive of, the (mis)labeled “repression.” As Foucault outlines earlier in The History of Sexuality:

Discourse, therefore, had to trace the meeting line of the body and the soul, following all its meanderings: beneath the surface of the sins, it would lay bare the unbroken nervure of the flesh. Under the authority of a language that had been carefully expurgated so that it was no longer directly named, sex was taken charge of, tracked down as it were, by a discourse that aimed to allow it no obscurity, no respite.

In addition to an erasure of speech, the same discourse that we call “repression” involves the unending speaking of the body. This discourse gives name and contour to the body so that sex and by extension sexuality could be known. While as Foucault mentions, discourse also motivates a parallel expurgation of its object, so that there is an erasure of certain names and systems of knowledge during the writing of the body, there is at the same time a relentlessness to this discourse which searches out all aspects of sex, allowing the category “no obscurity, no respite.” The condition for openly speaking the body, the discourse that Charles labels as important for changing homophobic repression, arises in the repressive hypothesis as the paradoxical definition of that repression. That is, our ability to label change as contrary to a “repressive” mechanism of power ignores how that change is bound up within, and mutually dependent on, that self-same regime of knowledge.

The power of the anti-homophobic emphasis in these debates is a power generated within the regime against which Charles and the Mison/Dressler debate attempt to move. By emphasizing the core homophobia in the HPD, the debates avoid how the power of anti-homophobia meaning the belief in the right to speak openly about sexuality without the (violent) intervention of repressive discourses, is a right created and maintained by those repressive discourses as an effect of those discourses. Again, this is not to say that the legal arguments on the reasonable man etc., are incorrect, but rather to say that the legitimation for, and power behind, making these arguments (the need to guarantee a supportive speaking about homosexuality) is part of the same discourse against which the legal debates move.

In showing how Charles inappropriately aligns silence and repression with homophobia against a liberatory form of speaking out for homosexual justice, we begin to see how this form of liberation performs the same mythologization that Charles assigns to the 20/20 report and The Laramie Project. For Charles, the “good” homosexual arises as a category supposedly revealed through open speech about sexuality, yet in returning to Foucault’s conjectures on discourse and repression, we can conceive of this process in reverse, noting how Charles’ efforts to liberate the homosexual tautologically creates a ‘true’ homosexual worth liberating.

Refuting Beyond: Discursively True Homosexuality

In my attempt to reinscribe the true homosexual within a Foucauldian understanding of discourse, I am not conversely affirming that homophobia or repression as it is understood in these articles structures the entire debate, but rather that both homophobia and speaking openly about sex are part of a regime of knowledge that we have historically labeled, according to Foucault, repressive. We might better label this repression simply as a regime of knowledge about sex: the regime that guarantees both a speaking and an erasure of sexuality. In recognizing the indebtedness of the arguments in the Mison/ Dressler debate to the selfsame regime of knowledge they argue against, we can begin to understand how these critics paradoxically attempt to eliminate the homophobic “discourses” that repress the true knowledge of homosexuals. Motivated by what they see as the outcome of these discourses, specifically the killing of homosexuals in the name of fear and loathing, the debate nonetheless sets up a problematic standard for homosexual rights in attempting to affirm the obviousness of the true homosexual. This engenders a sense of power for their arguments, as they deploy the anti-homophobic forces that would encourage a speaking about true homosexuality and a protection for that sexuality, though with the dangerous caveat that this true homosexual is neither AIDS-ridden, nor aggressive, nor sexually predatory. I have suggested to the contrary that these mythic bad homosexualites are as viable an identification as the “true” good homosexual.

By extension, I would now suggest that it is these rejected homosexuals, the predatory, AIDS-carrying, recruiting bad homosexuals that are at the greatest risk of being killed in a case of homosexual panic. And while the murder of a true homosexual, meaning a gentrified one, may be easier to decry as an unjust act, the arguments against the HPD might gain the greatest efficacy in attempting to address the homosexuals who seem to deserve this deadly punishment. Perhaps Matthew Shepard was, as the 20/20 news report and others argue, an AIDS-carrying drug-user; does this make his death any less unjust?

In light of this reinscription of good and bad homosexuals within the same regime of knowledge we might label at various points as homophobic and repressive, we can return to Foucault one last time in an attempt to resituate the antipathetic project against the HPD and homophobia within these new understandings. In a lecture published as “Truth and Power,” Foucault affirms “it’s not a matter of emancipating truth from every system of power (which would be a chimera, for truth is already power), but of detaching the power of truth from the forms of hegemony, social, economic, and cultural, within which it operates at the present time.” The project of the Mison/Dressler debate, in which the true homosexual is rescued from the field of discursive myths, falls under the first of the two possibilities Foucault presents here, as those articles attempt to liberate homosexuality from its reinscription within the systems of power like religion, politics and culture. Against this effort to denounce the myths, fictions and stereotypes, Foucault suggests a project of detachment. The distinction between “emancipating truth” and “detaching the power of truth” may seem razor thin, but I believe this is the difference that allows us to rethink the motivating factors in previous debates over the HPD.

Emancipating truth attempts to intervene at the level of repression/speech, by liberating the true homosexual from the cloud of repressive stereotypes and closetings. It therefore reinforces the truth of the regime we understand as “repression” in speaking a true homosexual, one that must be protected from wrong-speaking and over-speaking. As we have seen, this leads to a denial of the discursiveness of the true homosexual and sets him outside and against the “bad” homosexuals as laudably and uncritically good. It also denies the interlinking of the system of power (repression) with the object of truth (the good homosexual). Beyond this paradoxical project, Foucault suggests a detaching of the power of truth, which is an endeavor that attempts to intervene through unlinking that regime of knowledge known as “repression” from our ability to think the truth.

If it appears then, that the law is uninterested in “demanding full accountability for unmitigated anti-gay violence” as Suffredini suspects, we must not rise to the implicit task of demanding this accountability ourselves. To do so ignores the ways in which the law in these homosexual panic cases already contains the enjoinder to be a “good” gay subject, and the deadly punishment that awaits those who make mythic identifications with the bad. Instead, we must find the way to detach homosexuality from this good/bad regime through refusing to produce a discourse of rescue that strategically affirms the dignity and respect of homosexuality. In the violent, crisscrossing identifications and desires occurring within the HPD we can instead affirm a place for those bad subjects we might wish were mythic, but which we cannot allow to be consigned to non-existence.